David Heath Fouse v. State ( 2010 )


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  •                     In The
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    ______________________________
    No. 06-09-00110-CR
    ______________________________
    DAVID HEATH FOUSE, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 8th Judicial District Court
    Hopkins County, Texas
    Trial Court No. 0820358
    Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Justice Carter
    MEMORANDUM OPINION
    David Heath Fouse has filed an appeal from six convictions. Three are for the first degree
    felony of aggravated sexual assault on a child (under fourteen—B.P.), and three are for the second
    degree felony of sexual assault on a child (under seventeen—R.R. and C.J.). A single brief has
    been filed to address all six appeals. Fouse testified at trial. He admitted that he was convicted
    in 1999 of the felony offense of assault on a peace officer and the state jail felony offense of
    burglary of a building, and admitted having sexual intercourse with B.P. and C.J.
    This appeal is from his conviction for sexual assault on a child, on C.J. There are no
    issues raised or argument made concerning this conviction. When a point of error is inadequately
    briefed, we will not address it. Vuong v. State, 
    830 S.W.2d 929
    (Tex. Crim. App. 1992). This
    situation goes one step beyond simple inadequate briefing. Points are not merely inadequately
    briefed, they are not raised at all. This Court is not the appellant’s advocate. Although we have
    an interest in a just adjudication, we also have an interest in remaining impartial. Ex parte
    Lowery, 
    840 S.W.2d 550
    , 552 n.1 (Tex. App.—Dallas 1992), rev’d on other grounds, 
    867 S.W.2d 41
    (Tex. 1993). Thus, we will not brief a defendant’s case for him or her. Heiselbetz v. State,
    
    906 S.W.2d 500
    , 512 (Tex. Crim. App. 1995); see Busby v. State, 
    253 S.W.3d 661
    , 673 (Tex.
    Crim. App. 2008); see Lawton v. State, 
    913 S.W.2d 542
    , 554 (Tex. Crim. App. 1995), overruled on
    other grounds by Mosley v. State, 
    983 S.W.2d 249
    (Tex. Crim. App. 1998).
    2
    Further, the Texas Court of Criminal Appeals has explicitly held that an appellate court
    cannot reverse a case on a theory not presented to the trial court or raised on appeal. Gerron v.
    State, 
    97 S.W.3d 597
    (Tex. Crim. App. 2003); Hailey v. State, 
    87 S.W.3d 118
    (Tex. Crim. App.
    2002). With no arguments or theories to support a request for reversal being made in connection
    with this conviction on appeal, there is nothing before this Court which we may review.
    We affirm the judgment.
    Jack Carter
    Justice
    Date Submitted:       April 28, 2010
    Date Decided:         April 29, 2010
    Do Not Publish
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